Can a NEC3 early warning notice also be a project managers instruction?

The project manager has raised an EWN flagging a defect and also proposed a solution within the EWN. We belive that the solution is over and above the orginal scope within the Works Info and he should have raised a PMI and CE. Can we raise a CE 6 months after the event. We have worked at risk and ours costs are now being disallowed. we accept the defect may be disallowed but not the additional scope.

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Strictly speaking, while he should have raised a PMI and a CE for the work over and above the original scope, you should not have done the work over and above correcting the Defect until he had instructed you.

If the work you have done is not as per the Works Information, then you are in breach of contract as your obligation is to “Provide the Works in accordance with the Works Information” (clause 20.1).

This illustrates the importance of following the contract change mechanisms.

Further, even if the PM had given an instruction resulting in a compensation event then, depending upon what he instructed, he could argue that the CE arose from the fault of the Contractor and therefore, under clause 61.4, the Prices and Completion Date are not changed. I say “depending upon” because if the PM is trying to change a “chrome platted” solution into a “gold standard” solution by taking advantage of your Defect, then the raise in standard would adjust the Prices.

Agree with all of Jon’s comments - if you can demonstrate that the PM has sought to get a better solution then you should notify a compensation event as per clause 61.3.

You make reference to a 6 month timescale, there is no time bar on Instructions the PM should have given but did not do so. (would be useful to clarify at what stage of the project you are at)

In regard to Disallowed Cost 11.1(25) in an unamended nec3 - corecting Defetcs after Completion is Disallowed Cost and failure to comply with a constraint are Disallowable. You do not state on what grounds the costs are being Disallowed?

If a Defect 11.2(5) is a part of the works not in accordance with the Works Information then work which does not meet the requirements of the Works Information is a Defect but likewise an over specification of work could also be a Defect as this would not meet the requirements of the Works Information.